Alok Rajgardia Versus State of U.P. And Others

2017 (12) TMI 557 - ALLAHABAD HIGH COURT

Offence punishable under Section 138 Negotiable Instruments Act - Held that:- A contextual analysis of the provisions of Section 145 of the Act leaves no manner of doubt that the special procedure enabling the complainant to give evidence on affidavit notwithstanding anything contained in the Code of Criminal Procedure is a procedure available only in relation to a complaint for an offence punishable under Section 138 Negotiable Instruments Act. In the opinion of the Court, the said special proc .....

er in so far as it relates to summoning the applicant for an offence punishable under Section 420 IPC is not sustainable and is liable to be quashed.
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In the result, the instant application is partly allowed. The impugned order only to the extent that it summons the applicant to stand his trial for an offence punishable under Section 420 IPC is quashed. The rest of the order by which the applicant has been summoned to stand trial for an offence punishable under Section 138 of the Negotiable .....

gardia is the drawer of a bounced cheque and has been summoned by the learned XIIIth Additional Chief Judicial Magistrate, Room No. 46, Agra vide order dated 29.04.2004 to stand his trial for an offence punishable under Section 138 Negotiable Instruments Act. The aforesaid order has been passed in Complaint Case No. 3020 of 2004 (M/S S.E. Investments Limited vs. Radhika Automobiles Pvt. Ltd. and others.) and hereinafter is referred to as the impugned order; the complaint giving rise to Complaint .....

ery on hire purchase secured by hypothecation. On 10.02.2000, the Drawer along with his brother Ashok Rajgardia and father K. L. Rajgardia and Vikas Nahar came to the office of the Payee requesting finance for machinery on hire purchase in the name of his company M/s Radhika Automobiles Pvt. Ltd. After satisfying themselves about the authority and antecedents of the Drawer, the Payee financed a sum of ₹ 28,00,000/- whereon Rs, 10,50,000/- were hire charges aggregating a total sum of ₹ .....

ty given by the Board of Directors of the Company under reference to raise finance granted in the meeting of the Board held on 28.09.2000 proceeded to process the request and financed a sum of ₹ 16,50,000/- to purchase three cars under a hire purchase agreement whereon a sum of ₹ 4,12,502/- worked out as hire charges, the loan thus aggregating to a sum of ₹ 20,62,502/-. The aforesaid loan was also advanced in favour of M/s Radhika Automobiles Pvt. Ltd and was repayable in 23 mo .....

ured by the Drawer's Bank with a remark "Funds Insufficient" on 13.09.2002. The Payee received information about the dishonour from his bank on 14.09.2002. The Payee upon receipt of intimation of dishonour of the cheque in question sent notices dated 28.09.2002 by registered post to the four accused arrayed in the Complaint which includes the company, M/s Radhika Automobiles Pvt. Ltd, and, the Drawer, besides his brother and father, that were served upon the Drawer on 01.10.2002. I .....

say, the bankers to the Drawer, the memo of intimation of dishonour by the Central Bank of India, Civil Lines Branch, Agra, that is to say, the bankers to the Payee, a copy of notice dated 28.09.2002, and, registered postal receipts showing dispatch of notices besides the hire purchase agreement and statement of account relating to the Payee to show that the cheque was issued to liquidate a legally enforceable debt. The Drawer alleged that on allegations in the Complaint, the Drawer be summoned .....

for offences punishable under Section 138 Negotiable Instruments Act as well as Section 420 IPC. As the Drawer did not respond to the summons, warrants of arrest were issued by the Magistrate by an order dated 04.10.2004. These proceedings are discernible from a perusal of the order sheet annexed as annexure no. 4 to the affidavit in support of the Application. It is at this stage of proceedings before the Magistrate that the Drawer approached this Court through the instant Application under Se .....

icant, learned A.G.A., and also perused the material on record. Connect with Crl. Misc. Application NO. 13431 of 2004. As per facts mentioned in paragraphs no. 16 to 18 of the affidavit, it is submitted that only on the basis of the affidavit, summoning order has been passed against the applicant which is illegal. Issue notice to O.P. No. 2 to file counter affidavit within six weeks. List thereafter in the next cause list. Till then, the further proceedings of complaint case no. 3020 of 2004, M/ .....

at the instance of co-accused Ashok Rajgardia and K.L. Rajgardia who have been summoned for an offence punishable under Setion 420 IPC alone. Notice issued to the Payee by this Court was served upon them as would appear from the Office report dated 26.02.2005 but no appearance has been put in on their behalf. This Court, accordingly, by an order dated 09.03.2005 granted further time to the Payee to file a counter affidavit and extended the interim order passed on 15.12.2004 until further orders. .....

oath under Section 200 Cr.P.C. by deposing in the witness box as required by law; rather he has filed his evidence in support of the complaint to serve as a statement under Section 200 Cr.P.C. through an affidavit taking aid of the provisions of Section 145 Negotiable Instruments Act that permit a complainant to do so. It is pointed out by Sri Neeraj Pandey that the provisions of Section 145 Negotiable Instruments Act have been brought in through an amendment by Act No. 55 of 2002 with effect f .....

(supra) have been introduced with effect from 06.02.2003 and, therefore, cannot have retrospective operation or apply to complaints pending on the date of enforcement of the Amending Act (The Act No. 55 of 2002). It is no doubt true that on un-controverted facts the date on which the Complaint was filed, provisions of Section 145 Negotiable Instruments Act were not to be found on the statute book. These were introduced through the Negotiable Instruments (Amendment and Miscellaneous Provision) A .....

dispensing with the need to have that evidence recorded on oath in the witness box under Section 200 Cr.P.C. The impugned order was passed thereafter. The question, therefore, that falls for determination is: 'whether the provisions of Section 145 Negotiable Instruments Act would be applicable retrospectively to proceedings pending on the date when provisions of the Act No. 55 of 2002 came into force, that is to say, on 06.02.2003?' The submission of Sri Neeraj Pandey pressed with much v .....

where the question involved, as the one here, was formulated as question (b) in the following words set out in paragraph 2 of the report: "(b) Whether the provisions of Section 145 of the Act, as amended by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002,(for short "the amending Act of 2002") are applicable to the complaints under Section 138 of the Act pending on the date on which the amendment came into force? In other words, do the amended provisi .....

e Supreme Court in Hitendra Vishnu Thakur and Ors. v. The State of Maharashtra and Ors. 1994 Supreme Court Cases (Cri.) 1087. In the light of the law laid down by the Supreme Court in that case it was submitted that the amended provisions of Section 145 clearly affect substantive rights of the accused contained in Chapter XX and XXI and Section 461 of the Code as well as the rights of accused under various provisions of the Evidence Act relating to examination of the witnesses. 33. On the other .....

proposition, he too placed reliance upon the judgments of the Supreme Court in Hitendra Thakur's case and on Rajendrakumar v. Kalyan . Mr.Aney further submitted that the Code of Criminal Procedure and the Evidence Act are general laws and are statutes primarily of a procedural or enabling nature, and the rights created thereunder can always be altered or changed by the Legislature specifically intended for special situations. The Legislature is competent to legislate on a class of offences a .....

002 are applicable to the complaints under Section 138 of the Act which are pending on the date on which the Amending Act came into force. While dealing with the said question several judgments of the Supreme Court including the judgment in the case of Hitendra Thakur (supra), on which heavy reliance was placed upon, the learned Single Judge held that most of the provisions inserted by the Amending Act of 2002 and in particular Section 145 are purely procedural in nature and there is nothing in .....

er, would like to add few more lines in support of that view. 35. A bare look at the provisions contained in Chapter XX and XXI or Section 461 of the Code would show that there is nothing contained therein that could be said to amount substantive right. Chapter XX deals with the trial of summons case whereas Chapter XXI is concerned with summary trials. Both chapters are in fact concerned with the procedure to be followed in summons or summary trials. The provisions contained in these chapters d .....

dure and the Evidence Act are general laws and the rights created thereunder cannot be termed as substantive rights or vested rights of substantive nature causing any prejudice whatsoever to the accused by the Amending Act of 2002 and in particular Section 145. A bare perusal of Section 145 show that both the sub-sections (1) and (2) as introduced by the Amending Act of 2002 fall within the realm of procedural law, and hence they would be applicable to the pending cases since there is no vested .....

there is an express ban on to its retrospectivity. It is against this backdrop the provisions contained in Section 145 cannot be said to have prospective effect and it must operate retrospectively." It was thus held in re Peacock Industries Limited (supra) by the Bombay High Court that the provisions contained under Section 145 of Negotiable Instruments Act do not have prospective effect and must be held to operate retrospectively. The very elaborate and wholesome treatment of the issue wou .....

nserted in the Act with effect from February 6, 2003 would operate prospectively and would not apply to cases that were pending on that date. The High Court has considered the issue in great detail and has rightly taken the view that the provisions of sections 143 to 147 do not take away any substantive rights of the accused. Those provisions are not substantive but procedural in nature and would, therefore, undoubtedly, apply to the cases that were pending on the date the provisions came into f .....

y new offence and as such it does not create any substantial right but it is merely a matter of procedure of evidence and as such it is retrospective and will be applicable to this case. It is profitable to refer in this connection to Halsbury's Laws of England, Fourth Edition, Volume 44 page 570 wherein it has been stated that: "The general rule is that all statutes, other than those which are merely declaratory or which relate only to matters of procedure or of evidence, are prima fac .....

nless there is a clear indication that such was not the intention of Parliament."" (emphasis supplied) The decision of their Lordships of Supreme Court in re M/s Mandavi Co-op Bank Ltd (supra) clinches the possible scope for argument, if any, available to Sri Neeraj Pandy, though, in the opinion of this Court, the decision of the Bombay High Court had set the controversy at rest. Thus, this Court finds no substance in the submission of Sri Neeraj Pandey that the Payee could not have be .....

oduced through Act No. 55 of 2002 with effect from 06.02.2003 cannot have retrospective operation and , therefore, would not apply to pending cases is not fit to be accepted. The second limb of challenge to the impugned order is to the effect that the Magistrate could not have summoned the applicant for an offence punishable under Section 420 IPC based an affidavit evidence of the Drawer taken on record in place of his evidence in the dock on oath under Section 200 Cr.P.C. Sri Pandey contends th .....

Insufficiency of Funds in the Accounts." The aforesaid chapter with Sections 138 to 142 was introduced in the Negotiable Instruments Act by Act No. 16 of 1988 with effect from 01.04.1989. The above provisions were incorporated in the Act aforesaid for the purposes of safeguarding and sustaining the credibility of commercial transactions and to ensure that transactions through this particular Negotiable Instrument, that is, a cheque becomes a dependable way of transacting business. The prov .....

procedure in a complaint under Section 138 Negotiable Instruments Act becomes less cumbersome, and, pending trials as well as new trials are expedited, introduced the provisions of Section 143 to 147 to the existing Chapter XVII of the said Act. Section 145 of the Negotiable Instruments Act is being quoted in extenso: 145. Evidence on affidavit.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence of the complainant may be given by him on affi .....